Standing Committee A

Mr. Nicholas Winterton

Tobacco Advertising and Promotion Bill [Lords]

Peter Pike: I welcome hon. Members to the fourth sitting of the Committee. In accordance with a decision of the House, there are only five hours of debate left on the Bill. It is important that all clauses are debated and I hope that positive, constructive progress will be made today.Clause 17 Defences: burden of proof

Clause 17 - Defences: burden of proof

Question proposed, That the clause stand part of the Bill.

Tim Loughton: I will kick off this morning's proceedings by welcoming you to the Chair, Mr. Winterton and to the later stages of the Bill. I echo your comments that we should make positive, constructive progress. The Opposition have wanted to do so for the past three sittings. You will notice that, although we are about to debate clause 17, we shall then revert to clause 6. I fear therefore that we have made positive, constructive progress on only five clauses out of 22, which reinforces what the Opposition said at the outset: that our proceedings in Committee have been curtailed too severely.
 The Minister promised to consider various clauses that we shall revisit on Report and that emphasises the fact that there are still parts of the Bill with which many people are unhappy and that require far greater scrutiny. Otherwise, it will see its next airing in the courts—something that we should avoid. We must make the Bill as explicit as possible. 
 It would be useful to receive clarification from the Minister on clause 17. It is a later clause and was added to the Bill at the same time as the amendments to clause 5 were tabled. It deals with the burden of proof on defences. I am slightly mystified why we have to reinforce what I have always understood to be the basis of English law: that someone is innocent until proven guilty. All that the clause does is to restate the natural processes of law. We have often urged the hon. Lady to be more explicit, thus avoiding any possible misinterpretations of the Bill, but we are always told that it is self-evident. I wonder why the additional clause—welcome, though it was to many—was deemed to be necessary, repeating as it does the natural processes of the English legal system. It removes the need for the defendant to prove that he was acting reasonably, thus creating an evidential rather than a legal burden on the defence. 
 Subsection 2 is drafted in pretty poor English. Subsection (1) just about gets away with it, by referring to the long list of previous clauses. But the words, 
 ''Where evidence is adduced which is sufficient to raise an issue with respect to that defence, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not'', 
do not read well. The clause does not trip off the lips as easily as other parts of the Bill. It is a late addition and an example of how not to use the English language. 
 I will not detain the Committee with detailed, reworded amendments, but I wonder if the Government could improve the wording of the clause. We welcome the clause, but we would particularly welcome some additional explanations from the Minister as to why it was necessary to include a provision that appears to be self-evident.

David Wilshire: I also welcome you to the Chair, Mr. Winterton. The Bill that we are discussing has proved to be both fascinating and instructive. We have made less progress than I had hoped with regard to the Government listening to reasoned argument.
 As for making progress, I agree with you, Mr. Winterton, that it is important that a Bill be scrutinised in full from beginning to end. That is why the Government's suggestion that there should be eight sittings struck me as unreasonable. Eight sittings became seven, seven became six, and six ended up as five, and that is why it is proving difficult to make the progress for which some people have wished. 
 I have always worked on the principle that the role of the Committee is to scrutinise the Bill properly and thoroughly to ensure that we pass sensible and good legislation. If it has taken longer than some people would have liked, the fault lies not with us, but with those who decided that the debate should be truncated and that the issues should be made to fit the time that was deemed to be available, rather than making the time fit the importance of the Bill. I pointed that out during the Programming Sub-Committee and nothing subsequently has made me change my mind. 
 I am not a lawyer and I always find it difficult to get my mind around provisions such as clause 17, which refer to the workings of the law. When I see that type of clause, I ask myself why it has been included in the Bill. As a layman, I was always brought up to believe that everyone in this country is innocent until proven guilty. It is surprising, therefore, to discover that clause 17(2) appears to state that a person is innocent until proven guilty. I had believed that that was the standard assumption of all courts in this country. When I read that the Bill says what I assume to be true, I become extremely suspicious. It is not simply restating the obvious and has been included for a reason. After 15 years in this place, I have a somewhat suspicious mind, which leads me to think that the provision is intended to water down what would otherwise be an absolute right of all British subjects standing before a court. 
 Will the Minister say why subsection (2) states 
 ''the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not''? 
 There must be a reason for it, because as I understand the law, it would not be necessary, unless the Government were trying to alter the status quo when a case is brought before the courts. 
 I did not interrupt my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) when he was in full flow, but he said that clause 17 appears to make the test evidential, rather than legal. He clearly has a better grasp of such matters than I do. Will the Minister say what the significance of that comment is and whether there is a difference between the evidential and the legal? I always assumed that the court process concerned legal matters. If there is a difference, I should be grateful if the Minister would explain it. If there is a choice to be made between evidential and legal, why have the Government chosen evidential? I have two questions about subsection (2): why does it refer to the burden of proof and why is a choice made about evidence in it? 
 Subsection (1) makes a key point, too. It says: 
 ''This section applies where a person charged with an offence under this Act relies on a defence under any of sections 5(1) to (6), 6(1), 9(5), 10(3) and (4) and 15(3).'' 
What about any defence that does not rely upon those clauses? I speak as a layman, but I presume that there might be such defences, either in common law or in statute law when there is spill-over from previous statute laws, as is the case with the Bill. Why should the provision mentioning the burden of proof relate to the defences listed, but not to others? If there is good reason to refer in subsection (2) to evidence that is ''beyond reasonable doubt'', why does that not apply to every defence that could be used in a prosecution under the Bill? A choice must have been made. 
 I should be grateful if the Minister would consider the issue raised by my hon. Friend—the fact that the provision has been added to the Bill. That means that the Bill as originally published and considered in the other place, was, after discussion, deemed by the Government to be flawed. The Government decided that there was something wrong with the Bill and so they added something to it. It would be helpful to be told what it was that the Government realised was a mistake; why the clause was chosen as the means of solving that problem; and what other routes to solving it were considered before that one was chosen. I hope that the Minister can explain to me, a layman, some of the intricacies of the legal thinking.

Yvette Cooper: I also welcome you to the Committee, Mr. Winterton.
 The clause was introduced in the other place; it was not part of the Bill that we discussed a year ago in Committee. It is about the burden of proof when the defendant has a defence. As we have said many times, we have structured the Bill by setting out an offence—the promotion of a tobacco product through a tobacco advertisement—and then setting out the defences 
 against it. The prosecution must prove that offence beyond reasonable doubt. The issue is who has the burden of proof for defences. 
 Someone who distributes or publishes a tobacco advertisement might believe that they have a defence. For example, they might not have known or have had no reason to suspect that the tobacco advertisement would be published in the United Kingdom. The clause sets out clearly where the burden of proof lies in the case of such defences; it lies with the prosecution, who will have to prove, first, that the defendant committed an offence by publishing or distributing a tobacco advertisement and, secondly, that the defendant's defence does not stand up. 
 The reason for subsection (2) is that the defendant has to produce some evidence 
''to raise an issue with respect to that defence''. 
In other words, the defendant must produce some credible evidence to support their defence. If the evidence 
''is sufficient to raise an issue'', 
the prosecution has the burden of satisfying the court or jury on the matter beyond reasonable doubt in the ordinary way.

David Wilshire: If I understand the Minister correctly, she suggests that in some circumstances it is up to the defendant to prove the case for his defence. I have always assumed that it is up to the prosecution to prove the case. I find it amazing that that is suddenly necessary and we have not heard why.

Yvette Cooper: The Committee's purpose is not to comment on the structure of the British legal system, and, as I am not a lawyer, I have no intention of doing so.
 The purpose of the amendment is to make it clear where the burden of proof lies in the defence. It is right that the burden of proof should lie with the prosecution once someone has offered evidence that they have a defence under the Bill. The clause is intended simply to get the balance right and to ensure that the things that the defendant in such a case must prove are reasonable in respect of banning tobacco advertising.

David Wilshire: That will not do. I appreciate that the Minister is not a lawyer and, therefore, cannot necessarily give detailed answers, but the Government owe it to the Committee to ensure that someone can answer the legal questions. I challenge the concept of the need to specify that the matter is for the prosecution to prove, rather than the defence.
 The Minister says that we cannot consider the British legal system because that would be to go down another route, but that is exactly what we have to do. Surely we are here to deal with the vagaries of the British legal system? If we do not, how can we be satisfied that the Bill is sensible within the framework of that system? When the Bill is enacted, the only way in which it will be tested will be in the courts. The vagaries of the British legal system and how its courts work will be the way in which the Bill is tested. 
 I find it strange that it seems necessary to specify that the defence must not prove something, and I have heard no explanation why. I was under the impression, and the Minister has said nothing to dissuade me, that defences never had to prove anything in court, and that in a criminal court it was entirely up to the prosecution to prove a case and, unless the case was proved beyond all reasonable doubt, it fell. 
 The clause has been included for a reason, which cannot be to clarify an existing state of play. If the Minister cannot give us the legal explanation why it is necessary, will she arrange for someone else to do so and to write to the Committee with the answer?

Yvette Cooper: I have made the role of the clause clear. The previous wording, which did not include the clause, might have required a defendant to prove his defence on the balance of probability. That is the nature of the—

David Wilshire: Will the Minister give way?

Yvette Cooper: If the hon. Gentleman wants to hear my answer—

David Wilshire: Why would it be necessary in a criminal court for the defence to prove something? Surely that is what happens when the balance of probabilities is involved, in a civil court? Before the Minister gives the rest of her explanation, she cannot pass over the comment that it would otherwise have been necessary. Why?

Yvette Cooper: If the hon. Gentleman is so convinced that the clause is unnecessary, he is at liberty to vote against it, as this is a stand part debate. The Bill sets up an offence that the prosecution must prove beyond reasonable doubt. Defences are set out in the Bill. The question is, on whom does the burden of proof lie in respect of those defences?

Kelvin Hopkins: Surely there can be no harm in restating a principle of British justice in a Bill that may tread new ground in British law? The Bill goes too far to make it as easy as possible for tobacco companies to avoid prosecution, by making it hard to secure a prosecution. Obviously, they will be punished as appropriate, but the hon. Member for Spelthorne (Mr. Wilshire) has a point—the clause restates a principle of British justice. However, it is right that the clause is in the Bill.

Peter Pike: Order. This is too long for an intervention.

Yvette Cooper: My hon. Friend the Member for Luton, North (Mr. Hopkins) is correct. The clause is partly a response to recent case law and partly to concerns raised in both Houses about clarifying where the burden of proof lies. Without the clause, the previous wording may have required defendants to prove their defence on the balance of probabilities. The prosecution must prove the offence beyond reasonable doubt, but defendants would have had to prove their defence on the balance of probabilities.
 Recent case law has made it clear that the principle by which a person is innocent until proven guilty may be breached. The clause has been included in the Bill to put the matter beyond doubt and make it clear that the only burden on the defendant is to provide evidence. The burden of proof falls to the prosecution, once the defendant has provided evidence in the case.

David Wilshire: The longer the Minister talks, the more complicated the debate becomes. Every time that she is pushed to produce an explanation, she produces part of it and then falls back on some reference. Last time it was, ''We shouldn't discuss the principles of British justice,'' but we need to. This time it was, ''It is necessary because of recent case law.'' If she had said that the first time, there would have been no need for the second explanation. However, saying that the clause depends on recent case law is not sufficient. If people read our debate when a case is coming to court, they will need to know which cases we have in mind. What recent case law? Let us put on record the cases that led to the clause.
 The hon. Member for Luton, North cannot be allowed to get away with his intervention without comment. He said that somehow or other we seem to be making things as easy as possible for the tobacco companies to do this, that or the other. With the greatest respect, we are making is as easy as possible for the innocent to be found innocent of charges brought in court, which has nothing to do with tobacco companies. If someone is innocent, they must be found innocent. 
 If the prosecution cannot prove its case, a person is innocent. That is what this debate is about. If we are making it as easy as possible for justice to be done, I would say, ''Amen'' to that and I do not apologise. Tobacco companies should be able to go about a lawful trade unhindered in a legal way as innocent organisations. On the other hand, if a tobacco company breaks the law, it should be prosecuted. It is for the prosecution to prove the case. 
 The hon. Gentleman also said that it was a good idea to spell out the principles. He should think carefully about that. Why is it a good idea in this clause but not in others? He should have realised by now that I am happy to have a lengthy debate on the principles underpinning each clause with regard to British justice. One cannot pick and choose and say, ''Let's have some principles here and ignore principles somewhere else.'' His intervention must be challenged on those grounds. 
 Will the Minister tell us what recent case law?

Yvette Cooper: The most recent cases were those of Lambert, in which the House of Lords ruled on the provision in the Misuse of Drugs Act 1971 requiring a defendant to prove something in order to establish a defence. That must be read as requiring the defendant to give only sufficient evidence that he did not know something—an evidential rather than a legal burden of proof.
 That case was followed by the Carass case in the Court of Appeal. I have clearly set out the purpose of the clause. If the Opposition are unhappy, I suggest that they vote against it.

David Wilshire: Thank you. If we had had that explanation and the case law 20 minutes ago, we would not have needed the debate.
 Question put and agreed to. 
 Clause 17 ordered to stand part of the Bill.

Clause 6 - Specialist tobacconists

David Wilshire: I beg to move amendment No. 32, in page 3, line 39, after 'by', insert 'actual'.

Peter Pike: With this it will be convenient to take amendment No. 33, in page 3, line 44, at end insert—
 '(3)(c) In the event of an interruption in the availability of the items set out in subsection (2), the relevant 12 month period is the most recent 12 month period during which there was no interruption to such supply.'.

David Wilshire: Amendment No. 32 is designed to probe the Government on the meaning of the clause and amendment No. 33 deals with a matter of greater substance. We may wish to press that amendment, although that will depend on the progress of the debate.
 First, on amendment No. 32, subsection (3) states: 
 ''The sales referred to in subsection (2) are to be measured by sale price''. 
The Bill does not contain a definition of ''sale price'', which could have several meanings. The hon. Member for Luton, North mentioned spelling out principles; we should spell out definitions. 
 I think that I know what the Government mean, but I suspect that if we are not careful we could easily create a loophole for the tobacco companies, which the hon. Member for Luton, North does not much care for. Inserting the word ''actual'' would at least quantify the concept of the sales price. That word may not be right or what the Government mean. However, ''sale price'' has many possible meanings. The meaning could be the recommended price of a product or the discounted price. It could be the price before or after duty is charged, or the price before or after the addition of value added tax. It could be a price subject to a deal whereby the product is added to other items before an overall discount is applied. 
 If a prosecution were brought that was based on the ''sale price'', has any lawyer given thought to the following? If the clause says only ''sale price'', a defence could be offered that the recommended sale price is so and so and, when calculating sales figures, the recommended list price of the product rather than the actual or discounted price should be used because the discount that is given is based on the value of the customer and the overall business that he brings. Such business need not come only from tobacco products 
 because it could come from many other items. One could argue that the discount applied was that granted to the customer, not the product. A good lawyer could have quite a bit of fun with that defence and I imagine that it would be difficult to return to this Act—as it will be—and point out that the clause says ''sale price''. 
 Has any thought been given to that problem and does a definition of ''sale price'' apply generally in law? The hon. Member for Luton, North mentioned principles. However, we are returning to previous debates. I promise you, Mr. Winterton, that we will not have those debates again in general terms but, in your absence, we have had several discussions on the need for definitions to avoid doubt. This is a further case. What is the ''sale price''? 
 We tabled the amendment to stimulate discussion and to allow us to get our minds around the subject. My colleagues and I are not wedded to the word ''actual'', but that word would define ''sale price''. If the Minister does not like the word, I would be happy to hear an alternative. I stress that amendment No. 32 is a probing amendment and we do not necessarily wish to press it to the vote. 
 Amendment No. 33 raises a different issue. I am the first to admit—given that I drafted the amendment—that when a layman drafts an amendment, it is perfectly possible for it to be a load of nonsense in legal terms. Therefore, I am not deeply wedded to the wording. If the Minister says that the wording is useless and offers me a different form of words that has been researched by Parliamentary draftsmen, I will be delighted. 
 I have chosen those words because I am trying to tackle an important issue. Clause 6 says that specialist tobacconists can have exemptions or dispensations with regard to the provisions of the Bill. The Government have decided that that should be the case and that is fine with me—although the hon. Member for Luton, North would claim that the tobacco companies might be able to take advantage of that. 
 The clause seeks to define a specialist tobacconist by reference to sales. It states that if a business has been established for less than 12 months, the available information should be examined, and that if a business has been established for longer than a year, the previous 12 months' figures should be studied. If those figures show that the turnover of the business does not divide in such a way that it can be classified as a specialist tobacconist, I assume that that business will no longer be a specialist tobacconist and that, therefore, it will no longer be able to take advantage of this dispensation. The Government are saying that a business will be classified as a specialist tobacconist if more than 50 per cent. of its turnover is in tobacco products. That is fine—although we could argue whether that is the correct percentage, and that could be discussed in a stand part debate. 
 The Government have said that that is how they will measure whether a business is a specialist tobacconist, but it is possible for a business that has been a specialist tobacconist for many years to have a different year in trading terms. The trading patterns of that business 
 might change because the owner does things that alter the nature of the turnover. If those things are done voluntarily, that is fair enough; the owner might know what they are doing because they are aware of the need to stay within the Government's rules but choose not to do so—or not to take remedial action during the course of the year to ensure that the business does stay within the rules. If proprietors of such businesses choose to be in that situation, or are so silly that they do not bother to address it, they richly deserve their fate, because matters are within their control. 
 However, as Committee members who have run businesses know, circumstances can arise over which one does not have any control. I ran a retail business during the miners' strike; we lost our electricity supply and our sales plummeted. How much they fell depended on the time of day when our electricity was cut, because there is a pattern to when people buy things within the day as well as within the seasons. I had no control over the loss of the electricity supply. My turnover figures for that year were very different than those for many previous and subsequent years. 
 A specialist tobacconist might be unable to get specialist tobacco products because of a strike of some sort—such as a distribution, a manufacturing, or a shipping strike. It appears that we are returning to an era of industrial unrest, so any of those strikes could happen and they could last for a protracted period. Therefore, a business might find that its turnover of tobacco plummets and that there is nothing that it can do about that. The Government are stoking up the industrial unrest and it would be grossly unfair if they caused a strike and then penalised entirely innocent businesses. 
 This amendment is intended to address that problem. As I have said, its wording might be unacceptable to the lawyers, but it seeks to say that if a business is caught up in a strike that it cannot control and that affects its previous 12 months' figures, the figures for the 12 months before that—when there was no interruption of supply—must be used. The amendment would take out of a financial calculation a year in which unusual trading was not a result of the business's action or inaction. 
 The provision gives rise to another issue. Given crop failures and climate variation, it is possible that the availability of tobacco in its usual quantities from particular places may vary. As a non-smoker, I must rely on what other people tell me, but I gather that there are distinct differences in tobacco and that if someone smokes tobacco that comes from Africa, it does not automatically follow that he will want to smoke tobacco that is grown in America. 
 A specialist tobacco business may be based on a particular brand and be popular among certain customers because the tobacconist is obtaining the product from a particular area. If that crop fails or the change of climate restricts its availability and the tobacconist switches to another product that his customers do not like or with which they are not familiar, the turnover of the business could plummet in 
 the short term. It would take that business a while to build up a new clientele who would appreciate the new product. 
 Again, the interaction of supply in such a situation will be out of the control of the retailer. It is unreasonable to expect the business to be closed down and to run foul of the Bill because, in the short term, it had to change its product. I should be grateful for the Minister's response to such matters. I do not want her to comment on the wording of the amendment, other than to say how she could improve it. What are her views about an uncontrollable interruption of supply? Does she believe that it should be excluded from the financial calculations under the Bill?

Andrew Hunter: I add my words of welcome to you, Mr. Winterton, to those that have already been expressed. I shall not detain the Committee because my hon. Friend the Member for Spelthorne has rehearsed in some detail the arguments in favour of the amendments. I regard them as serious and I hope that the Minister does, too. It is clear from my hon. Friend's argument that the words ''sale price'' are insufficient because they lack clarity and definition.
 I support what my hon. Friend said about the possible interruption of tobacco supplies. As a smoker, I have experienced it. In the past two or three years, it has not always been possible to obtain certain types of Zimbabwean tobacco. That illustrates the broad theme of my hon. Friend's argument. It is a matter of regret that the Government have pursued the sales threshold with which amendment No. 32 deals. An alternative route was suggested in an amendment tabled in the other place, which was to change the threshold from ''sale price'' to the number of brands of tobacco products stocked in a particular shop. 
 Interestingly, that is the measurement used in comparable Dutch legislation. The argument for it is that it is far simpler to operate a system based on the number of brands than on sales, which are variable. Will the Minister kindly explain why the Government did not follow the example set by Dutch legislation?

Yvette Cooper: I do not think that the amendment adds anything to the Bill; it is therefore unnecessary and the Government oppose it. It is straightforward that ''sale price'' means the price at which the goods were sold—the amount that the customer pays the tobacconist, the coins that cross the counter, the number on the switch card stub.
 Under amendment No. 33, a complicated assessment would have to be made of interruption to supply. That would introduce all sorts of difficulties and complications about how such an interruption would be measured. The Bill allows a 12-month period—not three, one or six months—in which sales are to be measured. That is a considerable time and I think that the provision is fair. It would not be right for the Bill to try to anticipate every problem that might arise in the life of a specialist tobacconist, whether it be a change in local demand, an interruption in supply or any other hiccup. Those problems are in the nature of business, and tobacconists must respond to them. 
 If specialist sales fall below 50 per cent. in the 12 months in which sales are assessed, retailers will not, under the terms of the Bill, be counted as specialist tobacconists. Therefore, they will not get the allowances to which the clause refers. The hon. Gentleman asked why the Government chose to focus on sales rather than numbers of brands. It is easier to get round the number of brands, and so if the Bill concentrated on that, it would be easier for the provision to become a loophole. The Netherlands's legislation has not yet been implemented or enforced, so we do not have any experience of that system to draw upon. It is right to focus on sales rather than the number of brands on offer.

Andrew Hunter: The Minister referred to the 50 per cent. threshold, which I had intended to deal with in the stand part debate. I should like to ask her a question about it. We should challenge why that 50 per cent. threshold has been chosen. No health factor is involved in the choice of that figure. It does not make any difference to the purchaser—the smoker—what percentage of the tobacconist's stocks sold is from the allowed products. By insisting on a 50 per cent. threshold, we are not decreasing the health risk for the purchaser.
 I am conscious of the burden of bureaucracy that the provision will put on the small retailer and I should like the Minister to deal with that matter. The other day, I asked the specialist tobacconist from whom I buy my cigars how a 50 per cent. threshold would work in practice. He said that it would be a considerable demand. He also sells non-tobacco products. He tells me that the percentage of his takings that comes from tobacco products for which tobacco advertisements would be allowed varies from month to month. Some months, it would be more than 50 per cent., but in others it would be less than that. He regards it as an unnecessary burden that, under the Bill, he would have to put up and take down advertisements almost on a monthly basis and would see that as an unreasonable requirement from the Government. 
 For the life of me, I cannot see any logical reason for a 50 per cent. threshold because, whether it is 50 per cent., 30 per cent., or 10 per cent., it will not affect the health of the smoker. He will buy the tobacco products that he wants, regardless of the proportion of retail sales that his purchase constitutes. Will the Minister explain the purpose of the 50 per cent. threshold?

David Wilshire: In view of the intervention by my hon. Friend the Member for Basingstoke (Mr. Hunter), I want to query the status of the stand part debate. We have moved away from the two amendments and there are other issues to be discussed that would be better dealt with in a stand part debate. I seek an assurance about your views, Mr. Winterton, so that we may decide whether to debate further issues on the amendments or leave them until the stand part debate.
 The Chairman: Heavy weather is being made of the debate this morning. If there are matters that Opposition Members wish to discuss that are not dealt with on the amendments, I will, of course, allow a clause stand part debate.

David Wilshire: Thank you, Mr. Winterton. I will avoid roaming over territory that is not covered by this morning's debate. With regard to amendment No. 32, it is interesting that the hon. Member for Luton, North did not leap to his feet and shout, ''Loophole'', because it would be easy for specialist tobacconists—not for the tobacco companies this time—to slip through the legislation. When the Minister spoke about the price at which the goods would be sold, I immediately saw a loophole—a very big loophole—looming.
 Let us suppose that I am on the borderline of qualifying as a specialist tobacconist and I know that sales are measured by the price at which the goods are sold. I have good and regular customers, on whom I can rely to keep me in business, and they rely on me to supply them with the specialist products that they want. I might be tempted to say, ''Unless my turnover is 'adjusted', I cannot supply you with the specialist products that you want, so for the next few weeks I shall double the price of my hon. Friend's cigars and halve the price of other products.'' The figures on the counterfoil of the Visa card—the money that is passed over the counter—have been cooked. They have been made to fit. I had expected a response from the Minister to show that the Government mean the money that changes hands, providing that the price charged is not artificial. 
 There is a loophole and the Minister has just opened it up. I wonder if she might like to close it down again by agreeing that, if she is to rely upon the sale price being the amount of money that changes hands, an amendment needs to be introduced. An amendment is needed that would show that the price charged, or the price that changes hands, is not greater than the recommended retail price of the product. I am sure that a lawyer could find a way of wording it. I am not wedded to the word ''actual'' in amendment No. 32, and I will seek the leave of the Committee to withdraw it, so that we can move on to amendment No. 33, which I wish to move formally. 
 From the way in which the Minister responded to my questions, I suspect that she has never run a retail business. Otherwise, she would not have offered the view that 12 months is a nice long time in which it is perfectly possible to sort things out. That is not true. Two things occur to me about the tobacco business. Tobacco is an annual crop, and if someone misses this season, they must wait a full 12 months before the next one. It is not something that can be sorted out three months later because there has been a crop failure. If ever there were an industry that needed to work on at least annual cycles, it is one that depends for its raw materials on an annual cycle about which nothing can be done. 
 The other thing that was clear from the Minister's reply that 12 months is a long time was that she has never examined the sales figures of retail businesses. In my retail business, like many, more than half the 
 turnover was obtained in November or December, because of Christmas. I assume that the same is true of tobacco products, as many people seem to give and receive them at Christmas. A strike, for example, or interruption in supply, in late November or early December, could seriously hit the part of the trade that matters most in arriving at that calculation. 
 I therefore do not believe that the Government have taken the matter seriously. They merely say that 12 months is a long time and believe that tobacconists should simply sort themselves out. They would if they could, because their livelihood is at stake, but in some circumstances, specialist tobacconists cannot sort themselves out. I cannot believe that even this Government want to penalise people for matters that are entirely beyond their control. On that basis—unless the Minister wants to respond—I shall withdraw the amendment.

Yvette Cooper: I am happy to respond briefly to the points that have been made. The hon. Member for Basingstoke asked about the purpose of the threshold. Cigars, snuff and pipe tobacco are addictive and harm health. The clause allows specialist tobacconists some specialist treatment, because we recognise the concerns of small businesses that appeal to a narrow adult market. However, we must place clear restrictions on that treatment.
 Removing the threshold as the hon. Member for Basingstoke suggests would create a massive loophole. He seems to be arguing that anyone who sells cigars, snuff or pipe tobacco should be able to advertise them. We do not believe that that is right, and to do so would constitute an abuse under the Bill. Businesses fiddling figures would involve issues relating to falsifying figures and legal restrictions. 
 Subsection (1)(c) refers to compliance 
''with any requirements specified by the appropriate Minister in regulations in relation to tobacco advertisements on the premises of specialist tobacconists.'' 
A reference to regulations is included in case a loophole is created in future that is exploited in a particular way by aspects of the tobacco industry. It is therefore right to reject both amendments.

David Wilshire: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 33, in page 3, line 44, at end insert— 
 '(3)(c) In the event of an interruption in the availability of the items set out in subsection (2), the relevant 12 month period is the most recent 12 month period during which there was no interruption to such supply.'.—[Mr. Wilshire.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 3, Noes 12.

Bailey, Mr. AdrianBarrett, JohnCooper, YvetteFitzpatrick, JimHall, Mr. MikeHopkins, Mr. KelvinKhabra, Mr. Piara S.Mallaber, JudyMoffatt, LauraMurphy, Mr. JimTurner, Dr. DesmondWard, Ms Claire
Question accordingly negatived. 
 Question proposed, That the clause stand part of the Bill.

Tim Loughton: Several issues need to be addressed because, the longer the debate on the amendments moved by my hon. Friend the Member for Spelthorne continued, the more apparent it became that the clause is a pig's ear. It was clear from the outset—the Minister admitted it—that the use of the 50 per cent. sales figure is arbitrary. My hon. Friend the Member for Basingstoke mentioned other systems, in particular the system in Holland, that could be equally open to abuse if tobacconists were so minded. My hon. Friend the Member for Spelthorne mentioned that ''sale price'' lacks any definition.
 I gather that we are considering 380 specialist tobacconist businesses, which is a very small number of establishments out of the total of 22,000 retail outlets that sell tobacco products. The Minister told us that they are singled out and given special treatment in the Government's clause because the Government recognise the concerns of small businesses. If there are 22,000 retail outlets that sell tobacco products, which are commonly dominated by cigarettes, I guess that a substantial proportion of the remaining 21,620 outlets are also small businesses. It is not the case that every outlet that sells cigarettes is a big business—some are, especially supermarkets, most of which have tobacco counters—compared with outlets that sell specialist tobacco products, such as cigars, snuff and specialist tobaccos, although such businesses are usually small. I do not understand how the Government's preferential treatment of specialist tobacconists stacks up if their prime concern is to ensure that they do not act disproportionately toward small businesses. The Government are doing that because of what is written in the rest of the Bill. 
 The Minister almost gave credence to the fact that, for the first time, the Bill admits that different tobacco products cause differential harm—she may wish to justify her comments. The Bill's wording recognises that certain tobacco products are less harmful and that other products, especially cigars, are sold to people who are less susceptible to advertising hype or gimmick. For instance, I am sure that my hon. Friend the Member for Basingstoke hardly regards—if he notices at all—the advertisements that might be displayed in his specialist tobacco shop, and that advertisements in glossy magazines do not encourage him to visit it more frequently. His buying patterns are unlikely to be influenced by advertisements in the vicinity of the shop, behind the counter, attached to the till—or wherever. 
 There is an admission that some tobacco products might do less damage, and are less effective in influencing the smoking habits of certain people. I think that the clause admits that that is the case. Therefore, I hark back to clause 4, with regard to which the Minister refused to give retailers who sell cigars and specialist tobacco in particular—or exclusively, as in one of our amendments that addresses that—rather than cigarettes, any dispensation to carry on their business on a mail order basis, so that they can send price information to their mail order customers, without those customers having to request that information on each occasion. Therefore, there is a considerable anomaly between the way that the Government are treating the 380-odd specialist tobacco suppliers in this clause, and the treatment that they were not prepared to give them elsewhere in the Bill—in earlier clauses, and in amendments proposed by us that would have been consistent with what the Government are trying to do in this instance. 
 There is also a greater reason why the clause is a mess, which my hon. Friends began to touch on in their references to earlier amendments, and that is the issue of fluctuating sales. With regard to subsections (2) and (3)(a), there is a glaring anomaly. Subsection (2) defines a specialist tobacconist, and if a retailer is able to comply with that definition, he or she will be exempted from some of the advertising restrictions set out in subsection (1). It states that if more than half of a retailer's sales ''derive'' from cigars, snuff, pipe tobacco and smoking accessories, he or she will benefit from those exemptions. However, that figure will be quantified on the basis of the 12-month accounting period that is set out in subsection (3)(a)—or, if figures for an entire year are not available, of the period for which accounts are available—and that must, necessarily, refer to a time in the past, because accounts are produced historically. Typically, accounts for a financial year—such as the normal financial year that starts on 5 April, or a calendar financial year for which some retailers might take accounts—will be produced about three months after that year has finished. Therefore, we are talking about a definition that might be 15 months out of date, yet subsection (2) refers to the present tense. Which period will be taken into consideration when the decision is taken about whether an advertisement should be removed? 
 It is conceivable that a situation will arise where for the last 12-month period for which accounts are available the tobacconist was selling more than 50 per cent. of his goods in the form of cigars and permitted tobacco products, but he got rid of all such cigars and specialist tobacco products, or they were subject to fluctuations in supply, such as difficulties with regard to the crop from Zimbabwe, or because of customers who buy Havana cigars on their way back to the United States. 
 I cite that example because although one is not allowed to import for retail purposes Havana cigars from Cuba into the United States, there has been a 
 thaw in the relationship between those nations. We have seen evidence of that in the past few days, with the former President's visit. That being so, Havana cigars are readily available in the United States and American buyers will not have to use suppliers in the United Kingdom. The anomaly that an inordinate amount of our money subsidises tobacco producers in Greece and Italy may also change.

Andrew Hunter: My hon. Friend regards subsection (3)(a) as primary in terms of annual accounts for tax purposes. Does he agree that it could also be taken to refer to monthly running accounts of the previous 12-month period, which would vary?

Tim Loughton: My hon. Friend is right. That is another anomaly in the definition of accounts. I assume that the clause refers to the conventional sense of accounts in which accounts for a 12-month period are produced a few months after the end of that period. That would be most people's understanding. Most businesses do not run on a rolling accounts period, although some could. There is no definition of how the accounting period should be interpreted or of what makes up the sale price.
 The more I read the clause, the more I see that it is full of flaws. A tobacconist could trade in full knowledge that his sales of specialist cigar and non-cigarette products fall well below the 50 per cent. threshold, yet the accounts for the past 12-month period, that have not yet been produced, perfectly justify taking advantage of the exemptions, because at that stage he was selling more than 50 per cent. The following year, the reverse may be true. The clause is nonsensical. 
 The Government have not made a proper case for treating specialist tobacconists in a particular way. Although there are grounds for giving them special treatment, there are also grounds for protecting the many thousands of other small retailers who do not fall within the definitions of a specialist tobacconist, but are open to all of the vagaries of the small retailer that the Minister suggests she wishes to protect. She is patently not doing so because of what happens in the rest of the Bill. The clause is a mess. I welcome clarification from the Minister because the more one examines the detail of the clause, the more one sees that it could be open to all sorts of abuse.

Yvette Cooper: The clause was inserted because we recognise the concerns of small businesses that appeal to a narrow, adult market with products such as cigars and snuff. Ours is a proportionate response that reflects the fact that the industry is long and established and primarily concerns small businesses. It is not about giving an exemption to all small businesses. That would be wrong.
 The clause reflects that the market is predominantly adult and that advertising will be permitted in particular circumstances, within or outside the shop, for cigars, snuff and pipe tobacco. Although cigars and pipe tobacco may be less harmful than cigarettes and hand rolling tobacco, they pose considerable health risks. A European study found that the risk of lung cancer was five times higher for cigar smokers than for 
 non-smokers. It is important that although allowance has been made for specialist tobacconists, we should be clear that that is not an exemption from a comprehensive ban, and that clause 6 (1)(c) has the power to deal with any abuse that may arise as a result of the exemption. 
 The accounting period is clear; it is 
''the most recent period of twelve months for which accounts are available''. 
I think that a 12-month period is right, and will provide the correct level of allowance. It would be wrong to make further provision for specialist tobacconists. The exemption is clearly restricted to a particular set of businesses, and we should be clear that the overall aim of the Bill is to ban tobacco advertising for very good health reasons.

David Wilshire: There were a couple of issues that the Minister did not address, and I would be grateful if she could give us some information about them. She rightly says that she is concerned about the anxieties of small businesses. I welcome converts to the cause of capitalism wherever I can find them. Welcome to the club, I say to her.
 Why 51 per cent.? There must be a reason for that figure, and I expected the Minister to give us an explanation. The figure cannot have been plucked out of the air. Were there consultations, and if so, with whom? Did others suggest 51 per cent., or say that it sounded reasonable? I should like to know because it helps to define the sort of small business that the Minister has in mind. 
 Another subject on which I expected guidance is subsection (1)(c), which reads: 
''complied with any requirements specified by the appropriate Minister in regulations in relation to tobacco advertisements on the premises''. 
It would be nice to know to what we are being asked to agree, and what the Government have in mind by way of acceptable and unacceptable advertisements. I would not put it beyond the Government, if they could get away with it, to say, ''Look, we are making a concession, aren't we great people? We've converted to capitalism and we're going to support small businesses'', and then come up with a regulation saying that any advert larger than a postage stamp will not be allowed. That is how they might defeat this so-called good concession. It would be helpful to have some reassurance about the type of advertisements that the Government might include under regulations.

Yvette Cooper: May I seek your guidance, Mr. Winterton? Obviously, I am happy to respond to as many points as hon. Members make, but in the interests of speeding up our progress it would be helpful if hon. Members could raise as many of their points as possible in their first contributions on a subject, rather than raising new points as soon as I have sat down.
 We had discussions with specialist tobacconists on the 51 per cent. before last year's Bill was published. They had no strong objection to that figure. If Opposition Members want to propose a different figure, we could discuss it, but 51 per cent. seems 
 sensible to me. As for regulation-making powers, we have said that at this stage we have no intention of introducing any particular regulations. The power is included in the Bill in case the provisions in clause 6 are abused and used as a loophole to introduce forms of tobacco advertising other than those normally used by specialist tobacconists.

Tim Loughton: I fear that I am going against the Minister's request for us to group all our points together.
 Perhaps I could reply to the Minister's response to my initiation of a clause stand part debate. As my hon. Friend the Member for Spelthorne said, we have identified yet another undefined ''in case'' subsection, the most far-reaching and abusive example of which we shall consider under clause 7. The Minister said that the clause was a proportionate response, but she went on completely to ignore all the practical points that I made about when the accounting period starts and fluctuation in the mix of sales, for example. That shows that the provisions in the clause are tokenism, and that no regard has been taken of the mechanics of bringing the clause into effect and the effect that it will have on practitioners. 
 The clause does not provide any clarity. If I were a specialist tobacconist as defined under the clause, I would not know whether I was coming or going, which my hon. Friend the Member for Basingstoke said was the response of his specialist tobacconist. The clause will cause much confusion. 
 The Minister said that special dispensation is being made for specialist tobaccos because the market for those is predominately adult. The market for any product under the Bill should be adult because a person must be aged over 16 if he or she is to smoke. 
 The amendments that related to specialist tobacconists and mail order lists were concerned with only specialist tobacco products, and particularly cigars, and specifically stated that people must be aged over 18 and that they should be treated as adults for the purpose of retailers' mail order prices and lists. Retailers derive much of their income from mail order because they are specialist, few in number and often difficult to reach. It was inconsistent for the Minister not to accept amendments that related to what she admitted to be an adult market, but to give special dispensation under the clause. The Government are being entirely inconsistent, which will result in a mess, and the Minister was unable to give us any reassurances. 
 I shall not force a vote on the clause so that we may move speedily on to consider other clauses. However, the more we debate the clause and the more the Minister takes us round in circles with her inadequate responses, the greater the confusion among retailers and the potential number of challenges in the courts. That is exactly the chaos and confusion that it is the 
 job of members of the Committee and other hon. Members to avoid by making the Bill clear and fair, which I fear is not true of this clause. 
 Question put and agreed to. 
 Clause 6 ordered to stand part of the Bill.

Peter Pike: I make a further plea to the Committee for faster progress. I am trying to help the Committee and, ultimately, the House of Commons. I am deeply worried that clauses of this important Bill might not be discussed. It is helpful if a Committee highlights the problems of a Bill before it returns to the Chamber for further consideration. That allows debates to be more meaningful and enables the Government to prepare answers that address difficulties and problems highlighted by the Opposition.
 I ask again for further progress, and I hope that after the completion of this afternoon's sitting, which is our last and must finish at 7 pm, the majority of, if not all, the Bill will have been debated.

David Wilshire: On a point of order, Mr. Winterton. I understand your concern but I must put on the record again that the guillotine at 7 pm is not fixed for eternity. The Government could allow adequate time to debate the Bill rather than insisting that five sittings are adequate and imposing a guillotine. The Opposition should do their job properly and to the best of their ability. We are not party to the lack of time.

Peter Pike: That is not a point of order. The House of Commons made a decision on the programming of the Bill.

Tim Loughton: Further to that point of order, Mr. Winterton. It is in order for the Government to approach you, as Chairman of the Programming Sub-Committee, to ask for a revision of the programme order that could allow debate to continue beyond 7 pm this evening and on other days. Have you received such an approach?

Peter Pike: The hon. Gentleman is correct. The Government could do that, and the usual channels of both sides of the Committee could have approached me. However, they have not done that and it is a little late to do so today. I now wish to make progress.Clause 7 Developments in technology

Clause 7 - Developments in technology

Tim Loughton: I beg to move amendment No. 34, in page 4, line 5, at beginning insert 'From 1st January 2007'.
 I wish to speak only briefly to the amendment because I hope to raise a wider issue under the clause stand part debate. The clause is one of the most far-reaching, so-called Henry VIII clauses that I have read. It provides that if the Secretary of State chooses so to do on whatever whim may have affected his 
 judgment on the day, he can change just about everything in the Bill that relates to advances in technology by electronic means. We want some definitions from the Minister of exactly what those changes may be. ''Electronic means'' covers an enormous range of current and likely developments. 
 The amendment would at least give some breathing space to what will become law. The Government are looking to bring in some of the legislation applying to advertisements two months after Royal Assent. That could well be before the end of 2002, so it seems only right that they should have set down something that will be appropriate for at least a good few years to come. Albeit that we have severe reservations about other matters that are not properly qualified or defined under the Bill, there should at least be a four-year run before the Secretary of State can don his Henry VIII cap and, on a whim owing to a development in e-technology, change everything. That is only reasonable. 
 We shall want to scrutinise other parts of the Bill, given that the Government want special dispensations for the advertising promotion ban and the sponsorship ban not to apply to certain sports until a later date. It is reasonable therefore that the Secretary of State should limit himself to dealing with what we have passed into law for at least the next four years, rather than suddenly deciding because of a development in e-technology—of which he may or may not now be aware—to bring in more strenuous regulations. We want there to be some leeway so that the Bill can bed in. If the Government have not prepared it for the next four years, the Bill is not worth the paper on which it is written. We should add that rider to the Bill, unhappy though we are with the entire clause, the reasons for which we shall advance in the clause stand part debate.

David Wilshire: It is unfortunate that the procedures of the House of Commons require amendments always to be considered before the general principle of the clause. However, I understand why, and such is life. I should prefer to start the debate by discussing the general principles of what I consider to be a bad clause. If it can be removed, so much the better. I doubt whether we shall win that argument, but we shall give it a whirl. Having established the principle that the Government are determined to have a Henry VIII clause, it would have been better to discuss first whether we can control it.

Peter Pike: Order. Even on an amendment such as this, the Chair has the discretion to allow a relatively wide-ranging debate. However, if that happens, there will be no stand part debate.

David Wilshire: I have no wish for a clause stand part debate, Mr. Winterton. I would rather stick to the issue that we are raising. If the Government are determined to approach the matter in this way, a period of four years would take us beyond the next general election, when we shall have got rid of this shower and will have a sensible Government in place, and will have no temptation to use the proposed powers.
 Nevertheless, unless there is a period during which these draconian and dictatorial powers can be used, we might as well not consider the Bill, because whatever we put in it, everything can be changed the day after it comes into effect. What is the point of the Government putting on record safeguards, good intentions and reassurances when we are being asked subsequently to consider that the following day it can all change, because, or so is the excuse, of changes in technology? Such changes do not even have to be changes of which the Minister was unaware at the time. On the narrow point, if the clause stands, a proviso or safeguard should be provided, and I would support the amendment tabled by my hon. Friend the Member for East Worthing and Shoreham.

Yvette Cooper: This is an aspect of regulation that we have no current intention of using to the extent that we have no insight of developments in technology that would make such regulations necessary. However, it is right to retain the powers in case a new development in technology makes them appropriate, either because it creates a loophole that allows greater tobacco advertising, or because a new defence should be introduced for people who might not be covered by the Bill but might fairly be caught or who should not be penalised by the Bill and otherwise might be.
 Given the pace of technology, it is right to have the clause. I have no insights into what might take place before or after 1 January 2007. The Bill has been designed to effect a comprehensive ban and to take on board as much as possible in anticipating future developments in technology, but that is not easy. Who would have thought just a few years ago that people would be sending one another text messages all the time and that advertising could take place through text messages to mobile phones? Many developments in technology are not anticipated five, four or even three years beforehand. It is therefore right to have such flexibility and to include the clause. We cannot anticipate how it might be used or whether there might be any need to use it, but it is important to retain the powers.

Tim Loughton: The Minister's response that the clause is an in-case provision that there are no plans to use is never a good enough defence, because it gives the Secretary of State far too many powers by regulation that go well beyond the matter under discussion. The reason that we alighted on 1 January 2007 is probably as arbitrary as the reason that the Government alighted on the figure of 50 per cent. of sales in the previous clause. However, it is a good starting point, and the Government have not justified why there should be no four-year bedding-in period. So many other clauses give power by regulation to clamp down on various things in the event of further developments that to include an overriding Henry VIII clause here, too, is wholly arbitrary. I will not labour the point, because it was an introductory foot-in-the-door
 amendment and I prefer to have a fuller discussion on the stand part debate. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Andrew Hunter: We are seriously worried about the purpose, effect and underlying principle of clause 7. We want to challenge the provision during our short debate and there are two or three points that I want to put to the Minister.
 The first can be dealt with in a few seconds and is not our major concern. As the Minister will recall, when the Bill was debated in the previous Parliament, the Government said that it was ground breaking because it made specific provision to tackle internet advertising. We do not quarrel with that principle because, clearly, a ban on tobacco advertising must cater for internet tobacco advertising. It is right that the Bill should cover electronic publishing and distribution, as does the draft European directive that is being considered by the Council and the European Parliament. 
 Our point is that it is also important that the Bill is couched in terms that are fully consistent with the e-commerce directive 2000/31/EC and with the way that the directive will be transposed by regulation in United Kingdom law. We seek from the Minister an assurance or confirmation that the Department of Trade and Industry is satisfied that the terms of the Bill are fully consistent with the e-commerce directive. 
 The second point is more substantive. Under clauses 2, 3, 4 and 5 there are provisions—either specifically or generally—on the publication, distribution and transmission of tobacco advertisements by electronic means. The Bill mentions the internet, but only by way of an example in clause 21. As that clause makes clear, the Bill applies not only to the internet, but to any or all electronic means of publishing and distributing. 
 That is why we find clause 7 so puzzling. When considered carefully, it becomes evident that the clause is largely redundant, because its provisions are covered elsewhere in the Bill. As my hon. Friend the Member for East Worthing and Shoreham mentioned, it enables the Secretary of State by order to amend any provision of the Bill that he considers appropriate as a result of any developments in technology relating to publishing and distributing via electronic means. 
 As I pointed out, the clause is effectively made redundant by the existence of clause 21, which decrees 
''references to publishing include any means of publishing (and include, in particular, publishing by any electronic means''. 
That covers the ground that clause 7 covers. Other aspects of internet advertising are also covered. The references that I am about to make apply not only to the internet, but to any form of electronic communication. Clause 2(3) deals with distributing, which 
''includes transmitting . . . in electronic form''. 
 Clauses 2(4) and 4(3) mention websites. Clause 4(1)(c) mentions the 
''internet version of . . . a publication'' 
whose principal market is not the United Kingdom. The explanatory notes mention that clause 3 
''applies where publication is by electronic means.'' 
All the provisions in clause 7 are to be found elsewhere in the Bill, so the clause is clearly not essential. That begs the question: why have the Government included the clause in the Bill? The explanation, given by Lord Filkin in the House of Lords, is that 
''the pace of technological change makes it very difficult to predict what new means of publishing or distributing may emerge . . . I believe it is clear that technology is moving so fast that it is almost certain that new things will occur in the future that we cannot foresee now. Thus, if we did not have such a clause, the Act would rapidly become obsolete.''—[Official Report, House of Lords, 18 January 2002; Vol. 630, c. 1250.] 
That answer, reflected in the Minister's words earlier, simply does not convince. How can the Bill become obsolete when it already bans the use of any electronic means? There can be no electronic means, either now or as a result of technological developments in the future, that will not be covered by the Bill. The Government admitted that in so many words in the other place, as is shown in columns 1250 and 1251 of the House of Lords Hansard of 18 January, volume 630. Yet the Government persist in using the line that we have just heard the Minister deploy. The Bill already prohibits tobacco advertisements that are published or distributed by any electronic means. Even if there were new developments, the prohibitions in the Bill would embrace them and clause 7 would still be redundant. 
 The clause enables the Secretary of State to 
''amend any provision of this Act'' 
should there be such technological developments. If all those electronic means are covered by the advertising ban, what conditions might the Secretary of State wish to amend? We look to the Minister for guidance. I hope that she will make it clear that she does not think that the Secretary of State will wish to change the provisions on defences and burden of proof in clause 17, the enforcement provisions in clause 13, the powers of entry and seizure in clause 14, or the penalties in clause 16. 
 The Bill creates serious criminal offences. Surely it is not appropriate to give the Secretary of State the power to change offences, defences, enforcement powers or penalties by order. Opposition Members feel strongly that, even though affirmative procedure applies, the clause goes far too far in giving power to the Secretary of State, as does clause 19. I ask the Minister to deal with that matter and to explain why the clause is needed. In what circumstances does the Minister envisage a Secretary of State using the additional powers?

Yvette Cooper: The clause recognises that technology moves fast. We already know that we are dealing not with billboards, but with the internet, e-mail, faxes and text messages. Who knows what may
 happen in the future? We are concerned that loopholes may arise from the development of new technology. Although I cannot imagine what would not be covered, we cannot predict what developments may take place.
 We may also need to introduce new defences. It is worth considering the development of the Bill. Clause 5 (5)(b) includes a defence for those engaged in electronic transmission. It states 
''it was not reasonably practicable for him to prevent its further distribution''. 
That defence is in place because of the particular circumstances and concerns of those involved in electronic transmission. Five years ago, the defence may not have been in the Bill. Technology has moved on quickly and, because we recognise the particular circumstances, the defence is included in the Bill. 
 It is conceivable that new technology may bring a new player who needs a special defence into the scope of the Bill. I cannot tell the hon. Member for Basingstoke that the clause will not be used to cover defences, because it may need to. I cannot foresee any further developments, loopholes or essential defences that may be needed, but it is right to allow for the possibility of the development of technology. The clause states: 
''in consequence of any developments in technology''. 
Entirely unanticipated loopholes may emerge and unanticipated defences may be needed. 
 The House of Lords Select Committee on Delegated Powers and Deregulation considered the clause in detail. It stated: 
 ''The Committee consider that the limited scope of the power and the provision of affirmative procedure make it acceptable''. 
The clause has been scrutinised and will apply only in the case of technology relating to publishing or distribution by electronic means. Given the importance to public health of banning tobacco advertising, it is right that we retain flexibility in the Act.

David Wilshire: That will not do. Clause 7 gives the most sweeping powers possible to a Secretary of State who, by order, may do just as he pleases, without any reference back to Parliament for primary legislation. On that point alone, the clause should not be in the Bill. As a matter of principle, it is wrong to hand out totally arbitrary powers to someone who can then behave like a dictator. Past practice has been that, if circumstances change and one wants to approach a problem in a different way, one returns to Parliament for parliamentary approval by way of legislation. That is what parliamentary democracy is all about.
 The Bill is not a special case and the argument about technology moving fast does not apply. Technology affects everything, not only the tobacco advertising industry. If the Government are allowed to get away with using that argument in this Bill, a principle will be established. They will be able to say, ''Every time we have an Act of Parliament, we will take powers to change it whenever the fancy takes us''. I do not wish to live in that sort of parliamentary democracy. 
 The Government must face up to a serious, fundamental point. If they are prepared to ride roughshod over parliamentary democracy, the world should be aware of what they are doing—it should be exposed. As a matter of principle, clause 7 is very objectionable indeed. 
 To pursue the line of thought taken by my hon. Friend the Member for Basingstoke, even if the Government are determined to act like dictators and stamp their jackboots all over Parliament, they should be consistent.

David Taylor: Does the hon. Gentleman want any more cliches?

David Wilshire: I will work on more cliches, if the hon. Gentleman would like me to do so. I will happily give way to him so that he can suggest some to me, as I am always eager to learn. However, it appears that he cannot suggest any more.

Peter Pike: Order. I frown on sedentary interventions, as they interrupt the flow of debate.

David Wilshire: Thank you, Mr. Winterton. I was just hoping that I might learn something.
 If the Government go down this route, they must get things right. It has been pronounced that this clause deals with the internet in a ground-breaking way. However, it has nothing directly to do with the internet. It is content to deal with ''electronic means'' and, as my hon. Friend the Member for Basingstoke demonstrated, that goes far wider than just the use of the internet. Therefore, the Bill cannot even get things right when it wants to take dictatorial powers. 
 The Minister said that technology moves fast, but we are not talking about technology and this is where the next confusion arises. We are talking about electronic technology and, therefore, to assert that this is all about technology moving fast, is to admit that the wording of clause 7 is wrong. If the clause was about technology moving fast it would refer to changes in technology, but it specifically refers to ''electronic means.'' 
 Reference has been made to what the noble Lord Filkin had to say about this matter in another place, but something interesting that he said was not quoted. Lord Lucas asked whether it was possible for there to be some means of transmitting this sort of information—these sorts of adverts—that does not have an electronic component. This was Lord Filkin's response: 
 ''The clause is specific on 'electronic', but even if he is right, as regards 'optical and other means', it is unlikely that there is not some electronic part of such a process that makes it relevant.''—[Official Report, House of Lords, 18 January 2002; Vol. 631, c. 1250-51.] 
In an attempt to justify sloppy draftsmanship, Lord Filkin has offered an insight into the future, by saying that it is impossible that there will be any technology that does not involve some sort of electronic means. I imagine that history is littered with idiots who have made statements about what the future will never hold, only to discover that it held exactly that. 
 I want the Minister to revisit the suggestion that the justification for this clause is that technology moves fast. Is she trying to tell the Committee that she is certain that no technology that will ever be thought up, and might be used for transmitting tobacco adverts, will be free from electronic involvement? If she is saying that, she is a miracle worker of the sort that I would be proud to be. 
 I was concerned about something else that the Minister said. On the request for my party to detail all its arguments together, apart from saying that the Government must not control the way in which the Opposition runs its debates, one reason why we cannot always do so is because she keeps dropping into the debate comments that have not been anticipated, which require some sort of observation and challenge from my hon. Friends and I. 
 For example, in response to a remark by my hon. Friend the Member for Basingstoke, the Minister said that these powers were intended to cover the defences that are possible and that this clause could enable changes to be made with regard to the burden of proof. I am many things—some of them good, some of them bad—and I often find that I have to admit to being naive. I am an honourable sort of person who likes to think well of others and it had never crossed my mind that a Minister of the Crown would be prepared to contemplate using the order procedure, with a Henry VIII approach, to say, ''We will just do it that way.'' 
 When dealing with the burden of proof, the rule of law is the citizen's fundamental safeguard against the state imposing its will. The Minister's comments on the clause show that it will undermine the rule of law and I hope that she is ashamed of herself. It cannot be right for us to agree that a Secretary of State may revisit how people may defend themselves in the criminal courts and what the burden of proof will be. Given earlier assurances about such matters and the traditional parliamentary procedure of primary legislation, which is a principle of the way in which this country runs itself, it cannot be right that we should proceed in that way. 
 The Minister said that the clause was designed to cover unanticipated loopholes. The Government may find that they need to cover several loopholes, but they are not unanticipated because we pointed them out. We spent a lot of time explaining potential loopholes in the previous three sittings. We were pooh-poohed and told that they were not loopholes. We are now told that the clause guards against unanticipated loopholes. However, the Minister could have dealt with most of them after they were pointed out, thereby making the clause unnecessary. 
 Even if there are loopholes about which we have not thought and that the tobacco industry, which the hon. Member for Luton, North thinks is ingenious, could come up with, why do we need a Henry VIII clause to deal with them? Under our parliamentary procedures, it is normal to have a Finance Bill every year. We have never said, ''Ah, there are tax loopholes. We'll just let some Chancellor of the Exchequer change the tax system at his own whim.'' If there is an honourable 
 tradition of examining annually our taxation legislation, what is wrong with using primary legislation to close loopholes that the Government were too incompetent to identify? Are the Government admitting that because they have been so sloppy and carefree and they know that so many loopholes have not been identified, they would have to legislate all the time? Is the reason for the Minister's justification that she knows that the Bill is shot through with flaws and the courts will overturn this and that? Is she so confident that the Bill will be a mess that she wants to make provision to hide her future embarrassment by making orders that she hopes nobody will notice? That cannot be right. 
 The clause strikes at the heart of parliamentary democracy and, by the Minister's admission, the rule of law. It shows up the Government's sloppy draftsmanship. Will the Minister reassure us that the clause is necessary—she has not yet done so? 
 The clause mentions ''electronic means''. Does the Minister think that an order could remove the word ''electronic'' so that the clause could cover any means? We are discussing electronic means—indeed, we started off by thinking that we were discussing the internet. However, the word ''electronic'' could be removed in the future. I would be grateful if the Minister would deny, at least, that that might happen.

Yvette Cooper: We are going round in circles. If Opposition Members do not like the clause, they may vote against it.
 The clause relates to 
''developments in technology relating to publishing or distributing by electronic means.'' 
I am interested by the suggestion that we should widen the scope of the clause to cover all developments in technology. We decided not to do that but to focus on developments in technology that relate to publishing or distributing by electronic means. That is right because it is the area in which progress is occurring most rapidly. If Opposition Members wish to table an amendment to widen the scope of the clause, clearly, there are many ways in which that could be done. 
 I did not mention the burden of proof—the hon. Member for Spelthorne was talking nonsense. We have much business to get through.

Andrew Hunter: I initiated debate on the clause and I do not believe that anyone who was objectively following our proceedings could fail to be profoundly concerned by both its contents and the Minister's attempt to justify the clause. Alarmingly, it gives the Secretary of State sweeping powers that, as my hon. Friend the Member for Spelthorne says, go to the heart of parliamentary democracy and the rule of law. We find it offensive and want to vote against it.

David Wilshire: I am sorry that the Minister does not like hearing the truth. That is unfortunate. I was not suggesting that we wanted to widen the provision. I was trying to give her an opportunity to say that she did not want to do so. If we have made any progress this morning, it is in that direction. She has now put on
 record that the clause cannot be used—I assume that that is what she means, rather than that she does not intend to use it—to leave out ''electronic'' and put in ''any''. I suggest not that the clause should say that but that it should not be included. To suggest that I am trying to widen a provision to which I am fundamentally opposed is nonsense. However, at least we have made some progress on that.
 The Minister says that she never mentioned the burden of proof. However, with the greatest respect, the clause enables alteration of the Bill's content following changes in technology in respect of electronic means of distribution, and she admits that it covers the parts of the Bill that refer to defences. Indeed, as we debated earlier, the part of the Bill that relates to defence specifies burden of proof issues. 
 As the Minister says, the clause relates to an ability to change defences in the Bill. Surely it follows, as day follows night, that we can change what the Bill says about a defence, which is that a burden of proof requirement applies. On her own admission, she might not have used the words that the clause does not state that it is possible to change the burden of proof, but it does not need to. It need state only that it is possible to change the provisions that relate to how to conduct a defence to move on to a reference to burden of proof. 
 That is one reason why I was so concerned earlier that the burden of proof should be included at all. If the Bill contained no reference to burden of proof, the established principle in British justice that a person is innocent until otherwise proven could not be touched, as the Bill would contain nothing to alter it. It would rely on custom, practice, common law and the courts, rather than the diktats of a Secretary of State who can decide at some stage that the burden of proof is not securing enough convictions, because for some reason he wants to be macho and find innocent people guilty of a crime to show how effective he is being and does not have the courage to ban tobacco smoking, for all sorts of obvious reasons. That is why the Minister needs to be much more careful about what she says. She must not try to deny that the clause affects the burden of proof merely because she did not use the magic words ''burden of proof''.

Peter Pike: The question is that the clause stand part of the Bill. As many as are of that opinion, say ''aye'', and to the contrary, ''no''. The ayes have it— [Interruption.] I am happy to put the question again, but the Opposition were extremely slow in responding.
 Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 12, Noes 3.

Hunter, Mr. AndrewLoughton, TimWilshire, Mr. David
Question accordingly agreed to. 
 Clause 7 ordered to stand part of the Bill.

Clause 8 - Displays

David Wilshire: I beg to move amendment No. 37, in page 4, line 14, leave out subsection (2).
 This is a probing amendment. It seeks clarification from the Government of the purpose of subsection (2). I am always suspicious when something that is not necessary has been popped into a Bill. The clause suggests that it is possible to control foreign businesses and foreign websites, yet under the subsection there are exceptions to that control and it states that the Bill will not apply to a foreign business or website. I was under the impression that we cannot legislate for foreigners outside our jurisdiction, so I became curious because such a provision was part of the clause. If may not be necessary to develop such a line of thought, but I wish to give the Minister a chance to explain the reason for the clause. It seems to be making an exception for something that we cannot control in the first place.

Yvette Cooper: Clause 8(2) provides the same defence for displays as that provided under clause 2(4) for advertisements. It makes it clear that the Bill does not have extra-territorial jurisdiction. The hon. Member for Spelthorne is right that it is impossible to enforce an extra-territorial element, but it is also right that that should be stated clearly in the Bill.

David Wilshire: That confirms my worst suspicions. The Minister said that we cannot control such people, so it is right to state that in the Bill. There are enough pages of legislation all over the place. We have necessary clauses to consider as it is, which affect the jurisdiction of England, Wales, Scotland and Northern Ireland. If we are to write into the Bill all the powers that it does not have, we will need a lorry to move it because it will be so vast. I understand the point that we cannot control people outside our jurisdiction. It was helpful of the Minister to admit the obvious, but we still have not got to the bottom of why it is considered necessary to admit the obvious. What is it about the clause that makes it necessary to say that it cannot do something that we all know it cannot do?

Yvette Cooper: In these days of increased international access and trading through the internet, it is important for the clause to clarify that, for example, a Japanese tobacco company that has no presence in the United Kingdom, but which has a website that can be accessed by a person in this country, does not commit an offence in such circumstances. I have made the position extremely clear.
 Mr. Wilshire: That is only a restatement of the obvious. We know perfectly well that a Japanese company cannot be held to account in the United Kingdom if it does not operate here. It does not get us far to continue with the circular argument— ''It's here because it's here, and because we all know that it's not necessary.'' The Government can waste their time talking about websites if they want to, but they could say, if they had the stupidity to do so, that it is a criminal offence to look at the internet. I sincerely hope that censorship will not be added to the long list of awful things that the Government do, but one never knows.
 I hear what the Minister says. Clearly, however much I press her, we will not get a satisfactory answer on why the issue is considered worthy of inclusion. The record will show that the Government will not produce valid arguments for perfectly valid questions. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Tim Loughton: I beg to move amendment No. 38, in page 4, line 18, leave out 'may' and insert 'must'.

Peter Pike: With this it will be convenient to take amendment No. 27, in page 4, line 20, leave out subsection (4).

Tim Loughton: The amendment is on the same principle as amendment No. 37, to which my hon. Friend the Member for Spelthorne spoke. There is great confusion in the clause, not least in subsection (4), which amendment No. 27 would omit. Amendment No. 38 would make a small change to subsection (3) to add force to it. Under the amendment, the regulations ''must'' give
''the meaning of 'place' in subsection (1).'' 
Greater clarity is required in the clause because it deals with the thorny issue of what is a display and what is an advert. I am keen to get a better definition of those words from the Minister, because they are certainly not clear from the wording of the clause or the explanatory notes that go with it. I understand that it is her own clause, which was in the Bill in the previous Parliament. The purpose of the clause should be to distinguish between a legitimate and a promotional display, but I do not think that it does so. The Select Committee had something to say about subsection (4) in its report. It stated: 
 ''The puzzle is made more difficult by subsection (4), which provides that 'The regulations must make provision for a display which also amounts to an advertisement to be treated . . .' as one or other but not both. Presumably this is because if regulations were to be made under clause 8(1) there would be a risk that a display of cigarette packets set out to spell, say, Camel'', 
or Marlboro, for want of a better brand, 
''would constitute both an offence under clause 2 and an offence under clause 8.''

David Wilshire: A double whammy.

Tim Loughton: Indeed, and one to which the Select Committee quite rightly drew our attention. The clause is an unnecessarily complex piece of drafting. Obviously, we have to know which sort of adverts, or set-ups, should be treated as displays, and which as
 advertisements. I have no difficulty with the idea that certain sorts of display should be treated as advertisements for the purposes of the Bill, or that regulations should be framed to define the circumstances in which that will happen. We do not dispute that. However, I do not understand why we need to complicate matters by going further.
 Surely, any display-cum-advertisement that cannot be categorised as an advertisement must, ipso facto, be a display. However, I have considered the wording carefully, and it does not appear that that is the result that has rather pedantically been achieved. It is particularly interesting that the clause admits the possibility that certain sorts of advertisement should not be treated as such for the purposes of the Bill. We agree with that. When we discuss the clause that deals with brand sharing, we will argue for explicit recognition that the use of a company's name and logo on its own stationery should not be treated as an advertisement even though, strictly speaking, it is exactly that. The clause envisages the framing of the definition of particular types of advertisements that should not be treated as such under the Bill. That is the very thing that we were told that legislation should not attempt to do. 
 The Bill enters complex territory when defining terms, or rather—as we have seen on many occasions—passes the buck for defining them. It appears that, yet again, the Minister is happy for the matter to be resolved by challenge in the courts at a later stage. Our proposals are probing amendments, because we are leaving a confused situation about when a display is an advertisement and when it is not. 
 Given that the clause is the Minister's own, I ask that the definition be made tighter. Otherwise, we are at liberty to strike out subsection (4), which reads as complete nonsense, and introduce a requirement rather firmer than the use of the word ''may'' under subsection (3). In previous Committees, the use of the words ''may'' and ''must'' has been a thorny subject, and we will not discuss the semantics of the particular term in any detail, other than to say that it needs to be beefed up so that ''place'' must be defined in subsection (1). I await the Minister's response with interest because I am completely confused by the clause, as I think most people are. That is why I am proposing the two amendments.

David Wilshire: Ever the one to try to be helpful, perhaps I can add to the Minister's list of questions to answer. Never let it be said that I am not prepared to learn and be reasonable.
 My hon. Friend was not as anxious about the use of the words ''may'' and ''must'' as I had hoped he would be. It is easy to say that any debate about whether ''may'' or ''must'' is used is somewhat pedantic. However, the whole issue of the contents of a Bill is one of pedantry, because someone somewhere will have deliberately chosen the word ''may''. Some thought will have been given to its use, and I should be grateful if the Minister would tell us why that particular word was used. Subsection (3) states: 
 ''The regulations may, in particular, provide for the meaning of 'place' in subsection (1).'' 
 The phrase ''in particular'' suggests that someone somewhere has said, ''Oh dear, there is a possible loophole if we use the word 'place'''. That there could be some difficulty with the word has clearly been a matter of debate, discussion and anxiety among parliamentary draftsmen and lawyers, otherwise the subsection would not exist. It is possible that I have misunderstood the subsection and that the Minister will tell us why—other than the fact that the address is a genuine issue—it has been included. If there is another reason, I would like to hear it. We would then have another provision that really was not necessary. Nevertheless, I am prepared to concede that it has been decided that subsection (3) is necessary, particularly in respect of the word ''place''. 
 What is the problem? Why is someone worried? If there is a difficulty, it must—not may—be solved. It is no use saying, ''It may please our fancy to sort the problem out, or it may not. It depends on how we feel about it on the day.'' If there is a real issue, it must be dealt with. The difference between ''may'' and ''must'' is important. If a provision may do something, why say so? We have the freedom to make regulations and that is what our debate is all about. We can say ''must'' if we want. Will the Minister tell us why ''must'' is not appropriate and the reasons for the inclusion of subsection (4)? 
 Amendment No. 27 raises another issue over and above those raised by my hon. Friend the Member for East Worthing and Shoreham. Subsection (4) provides that the regulations can, in effect, create offences. It is objectionable for all the reasons given by my hon. Friend as well as the idea that, yet again, we can hand to a Minister the power—by regulation, not legislation—to create brand new offences concerning the issue of displays and advertisements. 
 The longer we consider the Bill, the clearer it becomes that the Government want enabling powers. They want Parliament to hand them the permission to do much as they please and come up with whatever definition they feel like. They may do this or they may do that. If they have not got their defences or the burden of proof requirements right, they will change them when they get round to it. Subsection (4) is another example of the Government trying to take power away from Parliament and saying, ''We won't bother to discuss it.''

David Taylor: By firming up ''may'' into ''must'' and reducing the flexibility of Governments, does the hon. Gentleman not turn a sensible approach to law enforcement into the jackboots to which he earlier referred?

David Wilshire: I will add to the list of being naive, being a bit slow. I cannot see how that argument applies. Exactly the opposite is the case. Perhaps I misunderstand the hon. Gentleman and he will have another go at persuading me that I am missing something. By removing flexibility, one ties the laces of the jackboots together so that they cannot be used.
 The hon. Gentleman shakes his head, but I do not see his point. I am willing to be educated, but the essence of clarity is to remove the opportunity for wriggling, changing things, overruling Parliament and overruling the rule of law. If nothing else, the rule of law depends on clarity and inflexibility. I thought Parliament existed to create the law and to change it if necessary. In this instance, the rule of law and the supremacy of Parliament are being replaced by the diktat and whim of a temporary Secretary of State of whatever political party. If my party proposed that, I hope that I would have the sense to say the self same thing. 
 The clause is not right. It offers opportunities to do the opposite of what the hon. Member for North-West Leicestershire suggests. I am sorry about that. If he will not intervene now, perhaps we might continue the conversation afterwards. I am prepared to admit that I am wrong, but I think that that is unlikely. 
 On amendment No. 27, it is strange that the Government want regulations that will create offences. Subsection (4) is unnecessary because (4)(a) says that something must be either an advert or a display—that item A is not item B. Then—surprise, surprise—subsection (4)(b) says that item B is not item A. Why do the Government need to say what is so self-evident?

Yvette Cooper: The regulation-making power set out in clause 8 is not a power that we are planning to use, but a reserved power to prevent abuse such as displaying packs of cigarettes all over a model of a Formula 1 car or in the shape of a teddy bear. I do not envisage the regulations being needed. That is why last year's original draft did not include the provision. However, there was some anxiety that there might become a loophole, which is why the clause has been introduced.
 I will deal with the amendments in reverse order. If such regulations were needed, clause 8(4) would be essential, because we will have set out regulations on advertising at point of sale under clause 4(3). Those regulations will set out restrictions and define what might be permitted with regard to advertising at the point of sale. However, if new regulations are also introduced to cover display, there might be some overlapping areas; some things could be covered by both sets of regulations. Some things would clearly be advertisements at the point of sale rather than displays, such as signs. Other things would clearly be displays rather than advertisements, such as rows of cigarette packets set out in a gantry. However, it is conceivable that some things will be both, such as a Marlboro packet in a gantry in the shape of an M, or a Silk Cut packet displayed on a piece of slashed silk. 
 Where there is potential for some things to be both an advertisement and a display, it will not matter if no regulations are in force with regard to displays—if we have not exercised that power under clause 8—because they will be covered under the broader terms of the Bill with regard to advertising at the point of sale. However, if the power under clause 8 has been executed, two sets of regulations will potentially be in place, and it will be important for enforcement officers and traders to know in which circumstances the 
 regulations under clause 8 apply, and in which circumstances the regulations under clause 4(3) apply. That is why subsection (4) is an essential part of clause 8. 
 I turn to the issue about clause 8(3) and the meaning of the words ''may'' and ''must''. Clause 8(3) has been included to ensure that it is possible for regulations to define what a ''place'' might be, if that is needed, but it would be wrong to say that the regulations must provide for the meaning of ''place''. Whether to provide that meaning would be the right way forward would depend on the nature of the abuse or problem that the regulations were attempting to solve. For example, it is conceivable that the regulations will simply be about issues on a website, and will not refer to place, or that the draftsmen felt that it was not necessary to provide for the meaning of ''place'' to cover the abuses that were being described. However, it might be the case that it was thought to be extremely important to pin down the meaning of ''place'' to rule out some places and to rule in others. Therefore, it is necessary both to have that kind of flexibility and to retain the subsection. That is why the Government oppose amendments Nos. 38 and 27.

David Wilshire: The Minister has not addressed my concerns about ''may'' and ''must''. She has merely restated the obvious yet again. Why pick on ''place''? If the Minister would only answer our questions, we would make much more progress, because we would not have to try to wring information out of her.
 Clause 8 states: 
 ''A person who in the course of a business displays or causes to be displayed tobacco products or their prices in a place or on a website''. 
The regulations can address any of that. Why is it not stated that thes regulations can come up with a definition of ''business displays'', or ''cause to be displayed'', or ''tobacco products'', or ''prices'', or ''website''? The regulations could cover those words in the clause as equally as the word ''place''. All other words are not deemed to be worthy of mention, but the Minister made it clear that the regulations will cover all other words, although that is not mentioned. Clearly, the Bill will enable the regulations to cover the words although they are not spelt out as being covered. However, as ''place'' is singled out for special mention, it must be more important than the other words and the cause of more concern. If the word is singled out, surely it must, rather than may, be defined by the regulations because all the other words can be defined. 
 We were told that the provision is in the Bill to allow a reference to ''place'', but we have not been told why ''place'' has been singled out. I shall ask the question again. Why is it necessary to single out ''place''? What is so important and worrying about that word? If there is an answer to that question, surely it follows that ''place'' must be defined in order to address the worry. Otherwise it could be unmentioned in the same way as the other words.

Yvette Cooper: The hon. Gentleman's point seems to be that either one must do something, or one should not do it at all. The logic behind that is unclear. The
 provision is designed to ensure that the right flexibility is present to address problems that the regulations might resolve.
 An example of the use of ''place'' is to specify a place where tobacco is sold within a larger shop. There may be a desire to examine displays in a particular place. It is correct that there is flexibility for that, but we should not pin it down at this stage. 
 I have made it abundantly clear that we do not anticipate using the regulation-making power. We have not identified a current problem that we want to get rid of. If there were a specific problem, the Bill would cover it or we would say that we shall definitely introduce the regulation-making power. The power is reserved, and because it is reserved it is right that there should be sufficient flexibility.

Tim Loughton: Yet again, the Minister has resorted to saying that the Government do not intend to use the reserved powers, but they will put them in the Bill just in case. She failed to convince Opposition Members why the powers are required, why the word ''place'' has been singled out and why we should have a dual system. That heaps confusion on confusion. As we consider each clause, the Government's intention becomes less clear, as does how the powers will be used, if at all, and how the poor, unsuspecting retailer of tobacco products will know how to respond. If the
 Committee is confused about what the provisions mean, how on earth will people who make a living from tobacco sales cope?
 I apologise to my hon. Friend the Member for Spelthorne if I appeared to downplay the importance of replacing ''may'' with ''must''. That comes after many months serving on the Standing Committee that considered the Adoption and Children Bill. We considered so many such amendments that it became commonplace to go through the motions before they were tossed aside. I am not trying to diminish the importance of the replacement of the words in the clause, but I am war weary of other Ministers' responses to such amendments. 
 If we examine subsection (4), which states that the regulations ''must'', rather than ''may'', we notice the stark and distinct contrast between subsections (3) and (4). I agree completely with the points made by my hon. Friend the Member for Spelthorne about the importance of inserting ''must'' instead of the rather weaker ''may'' in subsection (3). 
 I was completely nonplussed by the welcome standing comment by the hon. Member for North-West Leicestershire. He completely contradicted himself, which my hon. Friend the Member for Spelthorne picked up. 
It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Four o'clock.